Dispatches from the 10th Crusade

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Third Time's the Charm, Naturally

I ended Part II quoting the 1790 Act that defined "natural born citizen" in a way that includes those born abroad of American parents (well, father), and pointed out how unlikely it is that the Framers meant something different in the Constitution.

However, for the satisfaction of those insistent on common law, there remains a real question: was there a settled common law treatment for persons born outside the US of an American parent and an alien parent? As best I can find, there was a settled treatment of such mixed persons, but it was not by reason of common law as such, but by reason of statutory law from very early on. Remember, there were people coming into the colonies every day by ship (and by other means, from the north and south and west), and they didn’t have to register or apply for legal status to be here. But being a subject of the king was handled by a much older law than the colonies.

As Blackstone explains:

THE first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.
….
WHEN I say, that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration,23 for the naturalization of children of his majesty’s English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king’s ambassadors born abroad were always held to be natural subjects:24 for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium [a restoration of rights upon return to one’s country]) to be born under the king of England’s allegiance, represented by his father, the ambassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. St. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it has been so adjudged in behalf of merchants.25 But by several more modern statutes26 these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.
…
NATURALIZATION cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king’s ligeance;

Of course because England was a monarchy and all its people were subjects of the sovereign, they did not speak of ‘natural born citizens’ but of ‘natural born subjects.’ And the principles laid out by which, from early days, the king and government recognized persons to be his existing even subjects born off English soil to be within his ‘ligeance’ and ‘natural born subjects’ are much as I suggested above. The kicker here, though, is that even the authority of Blackstone agrees that the MAKING of a person into a subject / citizen, after birth, is putatively a use of the power of the legislature to TREAT him as if he satisfied the criteria that a person ‘born into’ the state would have ‘naturally’. That’s what it means to be naturalized(tm). And if a person doesn’t have to go through ‘naturalization’ and be granted his citizenship by legislative grant, because he naturally has the condition ‘from birth’, he is a ‘natural born citizen’ as the concept is intended.

[I note for the sake of completeness that even so firm an authority as Blackstone can be a bit goofy: in saying “The common law indeed stood absolutely so; with only a very few exceptions”, he muddles the meaning of “absolutely”, and his example (diplomats) muddles the meaning of “common law”. For if an English diplomat’s child is born in France, within the English embassy, such embassy is considered to be part of England – not by nature but by a legal pretense granted by the French government. I will also point out that the “general principle ‘every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once’”ought to have had, and indeed must have had, limits. I have made this point before: someone who is merely traveling through a land must obey (i.e. ‘owes obedience to’) the laws of the land through which he is passing, but by the very nature of things he cannot give his whole allegiance to the sovereign of that land. (And no prince has ever demanded that travelers give their full allegiance to him during their travel through). Hence he must not disobey those long-term laws of his homeland that control him with respect to actions and characteristics defined over months and years and decades, even if they would conflict with the local law in his short trip. As an example, US law taxes US citizens on their world-wide income, including income earned during a brief tourist stop in France, and a US citizen does not fail to fall under that US law during the French interlude merely because of being outside of the US in a place that defines “income” differently – he cannot define his US income differently while in France. Therefore, in principle, a child born to parents merely passing through a foreign land as transitory visitors cannot REALLY and NATURALLY be a full-fledged citizen of the land in which he is born no matter what custom might seem to say about the matter. Custom is not particular enough for the case. If you think it seems to say that such a child born as a preemie in America during his French mother’s 2-week vacation in her 7th month of gestation is in the natural order of things an American citizen and naturally owes allegiance to America and remains subject to American laws e.g. on registration for the draft, then that is proof positive that you have misunderstood what that customary law really is, for such a stance defies all reason and common sense as well as practice. ]

The American Founders were well aware of the British standards that controlled the meaning of ‘natural born subjects’ and how that rule was applied to those in the colonies, because it must have been a constant matter before the authorities (whether this man or woman had, or had not, the requisites to be a subject). They borrowed effectively the exact same concept of ‘natural born subject’ to clarify the matter in the Act of 1790. It is inconceivable that they meant by the expression SOMETHING ELSE in 1787 when they wrote the Constitution and in 1788 and 1789 when they led the states to approve it. Also, by making it a matter of law in 1790, and then defining to be “natural born citizen” just what England had said about the matter, if they thought that this heretofore had been determined by ‘common law’ rather than statutory law, it is inconceivable that they intended that the law so stated was anything other than declaratory law. Blackstone again:

Statutes are also either declaratory of the common law, or remedial of some defects therein. Declaratory, …, and for avoiding all doubts and difficulties, to declare what the common law is and ever has been.

So this is Mistake 5: I find it bothersome that a law professor would fail to mention how declaratory law restates customary law, and that there was an explicit law in the US that defined “natural born citizen” only 1 year after the Constitution became ratified, as (at a minimum) declaratory law. And that no later law ever explicitly redefined the term so as to reverse that particular category of ‘natural born citizens’ statutorily: No statute ever said “a person born abroad of a parent who is a an American citizen is NOT a natural born citizen.”

Mistake 6: I find it not only unpersuasive, but akin to intellectual dishonesty, for a law professor to harp on ‘common law’ in this situation saying that we must use the common law meaning “natural born means being born in the territory,” when the laws of England from which the colonies had been ruled had STATUTORY law controlling just this very matter for 400 years, a period that well exceeds even the Catholic Church’s definitions for ‘immemorial custom’. A reminder from Blackstone, again, adding “remedial” after the “declaratory” law:

Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatsoever.

If custom had been silent about the special case of birth outside the country to subject parents, statute was not, from the 1300s on. There can be no plausible argument that we must resort to the common law meaning of ‘natural born citizen’ as “only those born within the territory” when the English government had not done so for 400 years. If Madison said (and I have not seen an actual quote) that the meaning of the phrase in the Constitution was that meaning ‘under common law’ (and meant it strictly speaking), then he was perhaps mistaken, possibly deceived by the extreme age of the statute into thinking that the law was that of custom.

Mistake #7: Amar appears (to me) to put the cart before the horse in citing the 14th Amendment as the reason Cruz is a born citizen:

The Constitution says, in the 14th Amendment, that anyone born in the United States and subject to our laws is a U.S. citizen.

Why? Well, because then you have the question “what does ‘subject to our laws’ mean” for this purpose. Hmmm? Well, a person who is a citizen is subject to our laws….. Hey, he does come close to stating what the amendment actually says.

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

And if you think about it, if everyone born here is a citizen, then everyone born here is subject to our laws generally speaking anyway, aren’t they? The only exceptions being those born to foreigners (like foreign diplomats) who are naturally subject to other laws (and thus subjects OF another country). The category “subject to our laws” is somewhat vague, because EVERYBODY who is here is subject to our laws to some extent (even foreigners, even diplomat foreigners on some matters). So if you make a Venn diagram, “subject to our laws” would seem to be equal to or larger than “born or naturalized”, and include the latter completely. But more significantly, I don’t think that this provision can be taken to be definitional of the word “citizen” because of the context of the amendment, and because it is seemingly circular if it’s a definition. It is, rather, a way of blocking an abuse: it blocks a state constructing any sort of second-class ‘citizenship’ status that is only sort of ‘citizen’. This prevents a state from redefining away freedom for blacks: there is to be no such thing as “citizen for X purpose and not-citizen for Y purpose.” But the expression is not intended to generate THE underlying meaning of “citizen” for all purposes - we already had that meaning.

8th Mistake: trying to make an issue of “considered as” instead of “is”, as in “shall be considered as a natural born citizen”. If the question is “how do we change a foreigner so that he is ‘treated as if he were by nature a citizen’ ”, the answer is “naturalization”. But if the question is rather “who is by nature a citizen”, using “considered as” is not intended to convey a pretense of status but a RECOGNITION OF status: “all persons in the following categories (a) through (h) are considered citizens from birth.” Now, maybe the expression “considered as” in the given case is actually intended in the former sense of something like a legal pretense or legal fiction, but you have to make that case, not just assume it. And since the language in 8 USC 1401 says all 8 categories “are” citizens, not “considered”, you’ll have your work cut out for you.

9th Mistake: That with Congress the matter cannot be determined by statutory law, because the Constitution only gives Congress power over “naturalization”, that’s all. Perhaps this is just a riff on 5 and 6, but the argument brings in the Constitution so I treat it separately: In order for Congress to state a law on “how to become a citizen when you aren’t one already”, Congress has to be able to STATE for the record “who is a citizen already”. That’s an inherent legislative function: to declare what is already understood as the common law rule, for clarity and certainty. It makes no sense for Congress to try to generate a process for “becoming” citizen and then attempt to apply that to people who are already citizens. So it must have the power to say who are already citizens as declaratory law. Now, we might worry about Congress pretending to specify a declaratory law that goes well beyond what was always understood for who is a citizen, without authority to do so, especially if that law contradicted a state law on the subject in any serious way. But the 1790 law in addressing children born abroad to citizens did not do so. The provision under 8 USC 1401(g) does not do so either.

Let’s get to some fact-gathering instead of law: what are the details of Cruz’s beginning? His mother was an American citizen from birth (born in Delaware). His father had left Cuba in 1957 to attend the University of Texas, and later obtained asylum when his student visa expired. He became a geophysicist, and ran a company in Calgary which provided computer-driven seismic maps to the oil industry. Ted Cruz was born in 1970 in Calgary. Cruz Senior became a Canadian citizen in 1974. But the oil industry went into hard times there. The Cruz family moved to Texas in 1974 and remained in the US. Cruz Senior became a naturalized US citizen in 2005.

There is some debate whether Mrs. Cruz became a Canadian citizen, but I did not find any documented claim she was so when Ted was born. It seems highly improbable that she did before her husband did in 1974, so even if she did become a Canadian citizen then it would not affect hers or Ted’s citizenship in the US as of 1970. In any case, American law does not provide that you lose American citizenship if you take on citizenship to another country, it requires that you also ‘intend’ to relinquish American citizenship. According to the State Dept., you can lose citizenship: http://bmkllp.com/newsletters/immigration/loss-of-citizenship-for-us-born-citizens/

through an affirmative action on the part of the citizen to renounce his or her citizenship or through the committing of several actions listed in § 349 of the Immigration and Naturalization Act (INA). U.S. citizens who lose their citizenship are said to be “expatriated.”
INA § 349 states that a citizen, whether a U.S. citizen by birth or naturalization, shall lose his nationality by voluntarily performing certain acts with the intention of relinquishing United States nationality. The fact of intention is critical; it is not the mere performance of the actions mentioned in § 349. Seven types of conduct are currently listed in the INA as expatriative. The potentially expatriating acts are: (1) applying for and obtaining naturalization in a foreign country, provided the person is at least 18 years old; (2) making an oath of allegiance to a foreign country, provided the person is at least 18 years old; (3) serving in the military of a foreign country as a commissioned or noncommissioned officer or when the foreign state is engaged in hostilities against the United States; (4) serving in a foreign government position that requires an oath of allegiance to or the nationality of that foreign country, provided the person is at least 18 years old; (5) making a formal renunciation of U.S. citizenship to a consular officer outside of the United States; (6) making a formal renunciation of citizenship while in the United States and during time that the United States is involved in a war; and (7) conviction for treason or attempting by force to overthrow the U.S. government, including conspiracy convictions.
Nobody I know of claims they can prove Mrs. Cruz lost her American citizenship by 1970 under the above standards.

Nobody I know of claims they can show Mrs. Cruz lost her American citizenship by 1970 under the above standards.

So, if I have these facts right:

(A) According to current law Cruz was a citizen by birth, and it does not distinguish between mother and father for this purpose.
(B) There is no explicit statute that defines the term “natural born citizen” anymore.
(C) There was at one time a statute that defined “natural born citizen” (in 1790), and under that law Cruz would have been recognized as a natural born citizen – but for a clause that distinguishes between mothers and fathers for this purpose. Such law did not contradict common law.
(D) Common law as such has never been explicit about children born away to citizens temporarily away.
(E) The principles underlying common law permit/imply that children born away to citizen parents would be recognized as citizens by nature – at least in some cases.
(F) Long-standing English law provided a meaning that included those born abroad of a subject parent.
(G) Statutory law is explicit about citizenship by birth but not about “natural born citizen”.
(H) Statutory law supercedes common law when made to clarify or correct defects in common law.
(I) Constitutional law makes only 1 important distinction in citizenship privileges, and that regards those who are “natural born citizens” versus those who are not.
(J) Current statutory law makes only 1 distinction in citizenship types, and that regards those who are “citizens at birth” versus those who are naturalized(tm). And does not require of a child born abroad that both parents or the father be American citizens, only one parent.

If anyone thinks that there is something that shows Ted Cruz truly is not a natural born citizen - as under the Constitution - something other than what was handled above, let’s have it. I cannot locate such a reason. If the term “natural born citizen” is not today completely coextensive with “citizen of the United States at birth” under 8 USC 1401, then very likely it currently HAS no definitely determinable meaning, and any attempt to assign a different meaning than “citizen of the United States at birth” would be no better than an ex post facto assertion of will.

Comments (34)

Thanks for all your work ferreting out and laying out all this info., Tony!

My understanding, which I have not googled, is that Cruz obtained a legal statement on this matter apropos of his being a senator. Obviously, he can't be a senator if he isn't a citizen. He has never undergone a naturalization process, so if he was not a citizen at birth, then he would have had to undergo naturalization even in order to be a senator. The opinion given was that he was a citizen. And if a citizen, and not by a later naturalization process, then the only other kind of citizen he *could* be is a citizen at birth, which it seems to me must be the meaning we give to "natural born citizen" for purposes of running for President.

I find it funny that people don't consider that Cruz was born UNDER Canadian Law. I don't see how Cruz can be a natural born citizen because CANADIAN Law dictates the status of Ted Cruz. His mother failed, failed to file the necessary forms at the nearest US Consulate!

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

Pretty sure Puerto Rico counts as an outlying possession.

As you imply, this doesn't as such the same thing as "natural born citizens". But I think the same underlying logic applies: US law doesn't have more than 2 categories of citizens than "those who are citizens at birth" and "those who become citizens by naturalization." British law (from whom we borrowed their expression "natural born subject" and adapted it) included those born outside the boundary of the country but were born to those subject to the king, as being natural born subjects. What conclusion would you draw?

Mr. Wheeler, Canadian law does not control whether a person is a citizen for purposes of AMERICAN law, only American law can do that.

According to the Canadian Citizenship Act of 1946, also referred to as the "Act of 1947" because of its effective date, Canada did not allow dual citizenship. ...
In order for Ted Cruz to have "become" a US citizen at birth in 1970, his mother would have had to retain exclusive citizenship to the US and filed a CRBA (Consular Report of Birth Abroad) to "obtain" exclusive US citizenship at the time for her son Ted and renounced his automatic "naturally acquired" Canadian citizenship.

American law doesn't particularly concern itself with whether someone is or is not considered to be a citizen under the laws of some other country, unless they have become so intending to relinquish US citizenship. As I documented.

The process in itself [getting a CRBA] is considered a very abbreviated form of "naturalization", thereby making such persons born outside of the OFFICIAL territories of the United States absolutely ineligible to become President of these United States in at least this one circumstance alone.

As far as I can tell, this is complete hogwash. The citizenship of a person under 8 USC 1401(g) is not that of "naturalization", which is covered under a different code section, it provides that such a person IS a citizen. Receiving a CRBA is a process of attestation of an existing reality, not a grant of a new reality. (Just as getting a birth certificate doesn't cause a birth, it certifies that a birth has happened at such and such place and time.)

State Dept: "A CRBA certifies that a child born abroad is a U.S. citizen."

A child born abroad to a U.S. citizen parent or parents may acquire U.S. citizenship at birth if certain statutory requirements are met. The child’s parents should contact the nearest U.S. embassy or consulate to apply for a Consular Report of Birth Abroad of a Citizen of the United States of America (CRBA) to document that the child is a U.S. citizen. If the U.S. embassy or consulate determines that the child acquired U.S. citizenship at birth, a consular officer will approve the CRBA application and the Department of State will issue a CRBA,....

Parents of a child born abroad to a U.S. citizen or citizens should apply for a CRBA and/or a U.S. passport for the child as soon as possible. Failure to promptly document a child who meets the statutory requirements for acquiring U.S. citizenship at birth may cause problems for the parents and the child when attempting to establish the child’s U.S. citizenship and eligibility for the rights and benefits of U.S. citizenship, including entry into the United States. By law, U.S. citizens, including dual nationals, must use a U.S. passport to enter and leave the United States.

Getting the CRBA is optional, it is not a necessary part of having the status of citizen by birth for the child. See here:

Certificate of Citizenship issued by U.S. Citizenship and Immigration Services (USCIS)
A person born abroad who acquired U.S. citizenship at birth but who is over the age of 18 (and so not eligible for a CRBA) may wish to apply for a Certificate of Citizenship to document acquisition pursuant to 8 U.S.C. 1452. Visit USCIS.gov for further information.

So if your parents didn't do it before you were 18, you can do it after. And it still doesn't confer citizenship, it certifies that status.

There is no mention of "naturalization" on the entire page, because naturalization is a matter of the US deciding to GIVE citizenship to a person, not a matter of noting THAT he is, already, a citizen and was at birth. (The requirement for an American to have a passport to come back here from Canada is new, didn't exist before 2001.)

By the way, note State's reference to "dual nationals". Whatever Canadian law says, the US State department realizes that some people who qualify for US citizenship by birth also qualify for another citizenship. It's not up to Canada how the US treats such persons.

Really, Lindsey, it's like you didn't even read my posting on this. Or even try to nail down whether the article had the facts right.

Congress could define "natural-born citizen" as something more restrictive than "those who are citizens of the U.S. at birth," but currently the most obvious interpretation of the law is that they're synonymous. Yes, Jordan S., that means Puerto Ricans they are natural-born citizens: so are those born in Guam, or born in Alaska before January 3, 1959.

A point that you don't give sufficient prominence: the settled U.S. practice is to pay no attention to the laws of other countries in deciding whether someone is a U.S. citizen or not. If U.S. law says you're a citizen, you are, and we don't care if some other country thinks you're one of their citizens or not: that has no bearing on U.S. law. Thus, it's not exactly correct to say that U.S. law either does or does not recognize dual citizenship, because it doesn't address the question. Thus, W. Lindsay Wheeler is mistaken in thinking Canadian law is somehow relevant.

Current U.S. law on losing citizenship is weirdly generous, presuming that a U.S. citizen who swears allegiance to another country, renouncing other allegiances in the process, doesn't really mean it -- assuming that they're perjuring themselves, in fact, though that's not a popular phrasing. State Department policy here follows a (mistaken, IMHO) Supreme Court decision from 1980.

Some people on the web represent that Ted's mother became a Canadian citizen before 1970. On one account, she became so by simple operation of law by being married to Cruz Senior (after he was a citizen), upon his being a citizen in Canada for a year. On this account, Cruz Senior was a citizen before 1970. This notion fails, because if she became a citizen of Canada by sheer operation of law, there is no way in the world to prove that she became a citizen of another country intending to renounce American citizenship. And the intent is necessary under American law to lose American citizenship.

Under another account, she apparently applied for and became one under Canadian naturalization law. At the time, so the claim goes, she would have to have sworn to allegiance to Canada, and also at that time Canadian law did not allow dual citizenship. If it could be proven (a) that she did follow this pathway to Canadian citizenship, and if it could also be proven (b) that SHE KNEW that under Canadian law swearing allegiance to Canada meant (to Canada) renouncing American allegiance and American citizenship, one might then argue that she could not have gone through with the act without _intending_ to renounce American citizenship. You can argue it. It's still not an open and shut case (what if, e.g. she did not mean it when she swore allegiance to Canada?)

So far, I have not found anyone documenting (a) and (b). They simply argue that she WAS a Canadian citizen. In addition, they don't seem to be able to nail down when this took place, so even the claim that it happened seems to be based less on direct documentation than on surmise and inference from incomplete facts.

Current U.S. law on losing citizenship is weirdly generous, presuming that a U.S. citizen who swears allegiance to another country, renouncing other allegiances in the process, doesn't really mean it -- assuming that they're perjuring themselves, in fact, though that's not a popular phrasing. State Department policy here follows a (mistaken, IMHO) Supreme Court decision from 1980.

You're right, Craig. In fact, in my opinion our law is weirdly generous in allowing the citizenship to follow upon a SINGLE American parent. That sets up, almost by necessity, that you will have lots of dual citizen kids - any kid born to an American and a person who is a citizen of another place. (Hell, think about the next generation after: Suppose I have dual citizenship with Italy & US. My wife has dual citizenship with France & Mexico. We are in Britain when the child is born. Our kid automatically becomes a citizen of FIVE countries, by birth?)

The whole area is ripe for reform and clarification. Ideally, illegal aliens DON'T get to have their kids get American citizenship just by being born here. Ideally, going away from here and staying away for years and years, and having a kid, and staying away many more years, should be presumed to mean something like "you didn't intend to inculcate the kid into American citizenship". Ideally, swearing allegiance to another country is taken to CONSTITUTE renouncing allegiance (and citizenship) to the US. Ideally, when an American and a foreigner have a child, they have to pick one nationality to assert FOR that child, and that's it. (And even then, that selection can be repudiated later upon clear and convincing evidence that they never followed through with the basic implications of asserting the child would be that nationality.) I wouldn't even mind seeing a Constitutional Amendment about this, given that it is so fundamental to our integrity. (And then we could explicitly define "natural born citizen" once and for all.) I just don't think we can pass a good amendment in current circumstances.

Congress cannot merely define a term from the Constitution to control its meaning. And yet that is what is basically being suggested here. Congress has the power to determine rules of naturalization, including automatic naturalization at birth (as in Cruz's case and Puerto Rico's). But a "natural born citizen" is not so because of a law passed by Congress but is so by nature. That's the whole point.

(I'm Canadian and have no skin in the game. I certainly would prefer a Cruz presidency to a Trump presidency or a Democratic one.)

For instance, Rubio is a citizen of America because he was born on the soil of America, but he is NOT a Natural Born citizen because his parents were still Cuban citizens!

To be a Natural Born citizen, is that BOTH parents be American citizens, be born ON the soil of America and third, be brought up in America.

Barry Goldwater, George Romney, McCain, Obama, Cruz and Rubio, may be citizens but they are NOT Natural Born citizens!

Tony, you fail to make any distinctions in grades of citizenship. The adjective "natural" means natural. One can't possibly be a NATURAL if any law or statue makes one a citizen! What governed Cruz before he entered the US was Canadian Law. Ted Cruz was NOT subject to US Law until he moved into America!

Suppose, for these purposes, that there was a clear, unequivocal way of saying that "as of 1787, a someone born in Canada to an American father was a natural born US citizen as that term was used in the Constitution." (This is pretty close to what I am saying.)

Are you saying that Congress has no authority to extend "born to an American father" to instead say "born to an American parent"?

Congress has the power to determine rules of naturalization, including automatic naturalization at birth (as in Cruz's case and Puerto Rico's).

Well, no, that's not what that is. You're mixing and matching terms. Even under the STRICT meaning of "natural born citizen" in 1787, people born in Puerto Rico fit the bill as natural born citizens: The word stems from the concept of "naturally subject to the king's ligeance at birth". If we were a monarchy, that would apply to Puerto Rico. It is not a 'naturalization' for them to be American citizens.

And, in fact, it is something of an oddity to suggest that these would be naturalized "automatically at birth". My central argument is that the very concept of naturalization is to confer the status by consent AFTER BIRTH what an ordinary person gets from their birth, which is a belonging to the nation of their parents. If a person already has the attributes that underlie what it means to be American, and they have those attributes by birth, it is an abuse of language to say that you CONFER the status rather than saying they HAVE the status. Which means that they don't "get" naturalized, they are citizens naturally.

But a "natural born citizen" is not so because of a law passed by Congress but is so by nature. That's the whole point.

And a person gets their nationhood _naturally_ by being born to their parents who belong to the nation. It is abundantly clear that a person born abroad to two American parents temporarily abroad is, by nature, a US citizen. What is uncertain, ambiguous, is whether (and under what circumstances) it takes both parents to achieve this, and how long is "temporarily". These ambiguities involve gray areas rather than clear bright lines, and cannot be resolved definitely but by asserting specific answers through statutes. When statutes are thus stated, these bright-line resolutions of the ambiguities are not to be thought of as "creating" citizenship where it did not previously exist, but as accepting the citizenship that is understood to exist already. This is all covered in more detail in Part II, did you not read that?

Lindsay, can you document the three types from authoritative sources? I.E., from statutory law or common law? I couldn't find anything that explicitly identified "regular" citizenship that wasn't natural born citizenship. I concluded it doesn't exist because I couldn't find any evidence of it. But if you have evidence....

To be a Natural Born citizen, is that BOTH parents be American citizens, be born ON the soil of America and third, be brought up in America.

Lindsay, it is inconceivable that THIS is what James Madison, and George Washington, and all the other founders meant by "natural born citizen", when 15 years earlier every single one of them would have insisted that - as had been the law in England since the 1300s - an English "natural born subject" included a child born in France to an English father. You are just saying what you WANT the term to mean, not what it actually meant to the persons who used the term.

The adjective "natural" means natural.

I dealt with this issue. Read Part II, I covered this. Idiomatic expressions and terms of art have to be handled more carefully.

One can't possibly be a NATURAL if any law or statue makes one a citizen!

I dealt with this. Read Part II and the first part of III. Law can be declaratory rather than creative. If the law merely declares for clarity what is already true but is not yet apparent to all, that does not "make" someone to be a citizen who wasn't so already.

I know you won't get this, but I will state it for the other readers. It is perfectly OK to disagree with my arguments - provide a better argument! It is perfectly OK to refute my arguments with facts that I didn't have - get more complete facts! (I even gave away hints to facts I didn't have!) But to reject my conclusions without even addressing my arguments, to pretend the arguments aren't even there, to go off half-cocked with claims that you don't even try to substantiate when I went to a lot of trouble to substantiate my claims with reliable documents and sources, is just rude in a conversation.

Are you saying that Congress has no authority to extend "born to an American father" to instead say "born to an American parent"?

Congress has all authority to naturalize whomever it wants however it wants.

But Congress cannot define by fiat "natural born citizen" any more than it can define by fiat "bear arms". In other words, it cannot settle the Constitutional question.

"as of 1787, a someone born in Canada to an American father was a natural born US citizen as that term was used in the Constitution."

The last phrase is key: as that term was used in the Constitution. This has nothing to do with statutory law. It has to do with what the Constitution means. The question then is, was someone born in Canada to an American father in 1787 considered a natural born citizen? I do not know for sure, but the strength of the arguments has me leaning towards "no".

It is not a 'naturalization' for them to be American citizens.

So why did Congress pass the Jones Act? If Puerto Ricans were already citizens by virtue of being born in Puerto Rico? If Congress rescinds the act, do Puerto Ricans continue to become citizens?

And a person gets their nationhood _naturally_ by being born to their parents who belong to the nation. It is abundantly clear that a person born abroad to two American parents temporarily abroad is, by nature, a US citizen.

No, it isn't, because this has not always been the case in American history. It takes an act of Congress to make this so. This is clear because (a) there are such statutes and (b) the 14th amendment does not make a foreign born child of an American citizen an American citizen.

For "naturalized automatically at birth", see a recent article by Eric Posner.

And a person gets their nationhood _naturally_ by being born to their parents who belong to the nation. It is abundantly clear that a person born abroad to two American parents temporarily abroad is, by nature, a US citizen.

No, it isn't, because this has not always been the case in American history. It takes an act of Congress to make this so.

We are talking at cross-purposes here: there are too many senses of "naturally" available. So let me try to clarify what I was saying.

In the above quote, what I meant by "naturally" was "in the very nature of things, by operation of nature, regardless of any law passed or not passed." If there had never been any laws about such things as "natural born citizen", it would still be the case that in the very nature of things a person receives his nationality through being born to his parents who belong to the nation. And this would apply equally to a person born within the US to two Americans, and to a person born outside the US to two Americans who were transients in another country. It would happen in the absence of a law about it because it is due to the operation of nature, not law: for in the nature of things where you receive birth is much less important to nationality than what you receive from your parents at birth. Location of birth isn't causal to the realities and attributes that go into making up a person's full participation in his nationality in the way what he receives from his parents causes those realities and attributes.

So why did Congress pass the Jones Act? If Puerto Ricans were already citizens by virtue of being born in Puerto Rico? If Congress rescinds the act, do Puerto Ricans continue to become citizens?

Jordan, I confess to the same general ignorance of Puerto Rico as most mainland Americans, to my shame. So I might have this wrong. More facts might change my understanding for this. But the way it seems to me is this: obviously, when we took over possession of Puerto Rico from Spain as an outer possession (not as a state, or even as a contiguous territory intentionally destined to become a state in the foreseeable future), it would have been very strange to insist that at that very moment Puerto Ricans had instantly become Americans as their nationality. If by nationality we mean participation in language and mores and loyalties, it would be ridiculous to say that they became American in a moment.

However, when we took over the place, we eventually had to decide how to treat them in terms of what rights they would have. And we decided by 1917 to give them the rights of citizenship. Through an act of law. AT THAT TIME, I think you are completely right that this constituted conferral of citizenship rights.

Now fast forward 100 years. People there have been American citizens for 100 years. They have lived under US law for 100 years. They have adopted a good deal of US culture, though modified by its non-state commonwealth situation, and have absorbed "belonging to" America if not to the degree Texas has, still to a very great degree. Eventually (assuming Puerto Rico does not attempt to sever itself, and it has repeatedly voted not to become independent), if not today, Puerto Ricans probably will have transitioned into enough participation in American culture that by operation of nature, they could NOT be considered anything but "American" in nationality. During the transition process, however long it takes, it is inherently gray and muddled - just as during medieval times there was a centuries-long transition for people of Wessex to come to view themselves as "English". The birth of a distinct nationality, and the extension of a nationality into a new territory, is per se not one that lends itself to precision, for part of nationhood consists in "how people think of themselves", and that cannot but be by stages and degrees of imperfection. And whenever that has occurred "enough", then children born of Puerto Rican Americans will be American by operation of nature, not MERELY by operation of law. So, even though the law will remain on the books, it will not be the most critical reason for a Puerto Rican's being right in saying "I am an American". Has that happened already? I admit that I don't really know.

Think of it this way: There was a transition process from when America purchased the Louisiana Purchase and when Missourians became a full-fledged state. But happened within one lifetime. A child born in 1793 to a French trapper and an Indian wife in Missouri could well have lived through all those changes, and remembered clearly when his land was not American. But if you read Mark Twain it is obvious that a child born in the 1840s thought of himself as American and "born in America" through and through. That's a transition. There had to have been a point in between in which it was a kind of a muddle as to how a child would have thought of himself: would the child born to the same French trapper and Indian woman in 1813, 10 years after the Purchase and 8 years before statehood, consider himself in later years as born in America? Would the child born in 1818 to Virginian settlers (who would vote in just 3 years for statehood) consider himself in later years to have been American "from birth"? Would that child have received his nationality by an act of Congress, or by operation of nature? If Missouri is part of the US and is a state by acts of Congress, do current Missourians receive their being citizens - and their nationality - from an act of Congress or by operation of nature?

And he concludes his small dissertation: "Any genuine construction of the “natural born Citizen” clause must begin from the starting point that it requires something more than citizenship by virtue of being born on U.S. soil. Minor v. Happersett, 88 U.S. 162 (1874), tells you exactly what that something is; citizen parents."

There are some quotes here from the founding fathers that might help shed some light on their attitude toward citizenship and birth. Even Jefferson regarded the 13 colonies as being 13 polities that together represented a nation, not a country of many nations. That is there is an American ethnicity and one is American by birth to other Americans as one is French by being born to a French family or an Englishman by being born to an Englishman subject to the King.

My hunch is that prior to the 14th amendment, we were purely jus sanguinis like very other Western nation. Therefore in the original understanding, a man who is born to a member of the nation, subject to the nation and nation-state just is by birth entitled to full membership in the nation and the rights and duties that obtain from that.

Interestingly, Congress eliminated the residency requirement for children born abroad to a single US citizen parent and applied it retroactively. Therefore even if Cruz was possibly out of compliance under the 1978 and prior requirements, by 1994 Congress had retroactively cleared him of having ever had to meet that compliance to be a citizen by birth.

But Congress cannot define by fiat "natural born citizen" any more than it can define by fiat "bear arms". In other words, it cannot settle the Constitutional question.

Congress cannot define it by fiat, but Congress has a particular set of valid options. It can rely on a form of jus sanguinis as a starting point and modify the number of citizen parents required to be one or two. It can add or remove an additional residency requirement. It can't do much else because there just aren't many citizenship options that are even applicable to birthright citizenship because the category is inherently narrow as to who is even a candidate. Obviously, a person born abroad to non-citizen parents is even eligible at all. It really comes down to jus soli and what jus sanguinis implementation is to be allowed to define it.

Your links are to professors and professional experts of one sort or another. This is better than the average blogger on the internet, (like me, for example), so good work. But they are not quite the same thing as the backing up your thesis with substantiation in authoritative sources, which is what I tried to do in my post: I directly quote the Constitution, US Code, the 1790 Act of Naturalization, the 14th Amendment. And then I quite Blackstone, who is not a source of LAW, but is the firmest authority on British common law that we have.

Each one of those links is a decent effort, to one degree or another. But each one of them suffers from difficulties, which is apparent from comparing them to each other and to English law, US law, and Blackstone. For example, Roland would have us believe that the in statute:

8 U.S.C. §1101(a)(23) naturalization defined
(a)(23) The term ''naturalization'' means the conferring of nationality [NOT "citizenship" or "U.S. citizenship", but "nationality", which means "U.S. national"] of a state upon a person after birth, by any means whatsoever.

"after birth" is not to be read as "after birth",

The qualifier "after birth" doesn't mean by an official act done after birth. It means from the moment of birth, or in other words, not before birth.

and all without the slightest reason under the rules of interpreting law.

Roland actually has a great deal of worthwhile material, I encourage people to read the article, but watch out for his mistakes.

Selwyn Duke is undoubtedly the most pompous and pretentious speaker I have had the misfortune to hear in a long time. But that does't make her WRONG. On the other hand, she does make clear mistakes: she says "that the delegates to the Convention of 1787...relied on Vattel's book" (see 3:20). Problem is, it was printed in 1789. How prescient of them.

Leo Donofrio would (correctly) have us grasp that if two clauses in the constitution employ different constructions, they must mean different things. Clause Article II in the Constitution uses "natural born citizen" and the clause in the 14th Amendment says just "born in the US" is a citizen. What he would have us believe is that this implies that the clause for "natural born citizen" must require MORE than "born in the US". But of course, he leaves out the phrase in the 14th amendment "and subject to the jurisdiction thereof" to "born in the US." For, of course, a child born here to a French ambassador is NOT subject to the jurisdiction of the US. But that's all you need to find a difference, and so the two classes "natural born citizen" and "born in the US" are distinct, as the rules of construction require.

I am not going to go at every single thing these people say. Let me be succinct: according to Blackstone, under a law of Edward III, a child born outside England to a diplomat English father was a "natural born subject", and this rule was also applied to other fathers' children by later law. Trying to parse between those who are "natural" and "born citizens", or natural born but not natural born citizens (!) is all irrelevant. Under the law as it existed when every delegate to the Convention was born, raised, and educated, "natural born subject" included some people not born within the boundaries of the kingdom. So, saying that "natural born citizen" meant, in 1787, that you had to be born within the country because of the "ius soli" rule is just to refuse to grapple with the full facts, to pick and choose what you want. When Madison said

It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.

either he was simply mistaken, or he could not have meant "the most certain criterion" is the exclusive rule in the US, because at the time the only meaning available was what was borrowed from England and they did not rule that way (by place) EXCLUSIVELY.

One think lawyers miss, is the idea of Commonsense. Commonsense is the first leg of philosophy.

Lawyers can do legalese all day long, but legalese doesn't countermand Commonsense. If it does--then Law has no business being law.

Commonsense, Cruz was born IN Canada and lived there for four years. Tony pulls up and says that's alright his mom is that important. Well, here is some logic for you Tony, If one person makes him an American citizen---Then, the ONE Cuban Father makes him a Cuban citizen! If American Law is that powerful, then Cuban Law is just as powerful. So Cruz is both Cuban and American! That means he is NOT a Natural Born citizen.

Cruz entered the race in March--he said Nothing about the wall or deportation. Trump enters the race in June and mentions deportation, Wall, stopping Muslim immigration!

That is all I care about. The WASP in this country is facing existential genocide and the people that be is letting in millions, which is an invasion. Ted Cruz is NOT a Natural Born Citizen. I will Never vote for him---Never. I will never vote for Rubio and I will NOT vote for another RINO. If we don't stop the invasion of this country--well, nothing else matters because already they have stopped all enforcement on the border. It's over. We don't have a country anymore! I'm not going to participate in my genocide. Sorry. Let the Democrats take over. No Trump---No vote.

The Law does NOT trump commonsense. Law does not trump the Common Good. Sorry. Read Sophocles Antigone or Euripides Alcestis or Plato.

The Naturalized citizen is the third one, where an immigrant comes to America, and then at some point takes a citizenship class and then raises their hand and swears allegiance; a foreigner then becomes a citizen albeit a Naturalized citizen. A naturalized citizen is when one who once started out as a foreigner and then becomes a citizen.

It takes three generations to become a Natural Born Citizen. Immigrant parents come, they have children in America. Their children are automatic citizens while the parents undergo the citizenship path. Then when their children grow up and have children themselves, then those children are natural born citizens.

Logical...straightforward...progression. No legalese. Easy to understand. All can grasp that.

The FFofA were all British subjects. The Constitution grandfathered them all in.

The Presidency of Obama shows the wisdom of the Natural Born citizen clause in the Constitution. Obama had a Kenyan Father who held a British Passport. Obama can be said to be dual citizenship, because British Law also dictates the status of Obama. Obama grew up in Indonesia in a Muslim madrass. Obama hates this country; he acts like a dictator; does not execute the laws of the land. By his actions, Obama is not a Natural Born citizen and it shows.

Lindsay, you speak to an important question: who SHOULD be considered to be natural born citizens? Who should be eligible for the presidency? And it is a worthwhile pursuit to answer that. I would probably agree with you on 99% of the outline for that issue. But the question I undertake to discuss here is, who is a natural born citizen as that phrase is to be understood given the laws and_the_history of the law and of this society.

The FFofA were all British subjects. The Constitution grandfathered them all in.

I am not as confident of this as you represent. Yes, they were all British subjects. But when Patrick Henry said "I am an American first, a Virginian second", and was not torn limb from limb or thrown in prison for out-and-out treason, you have to ask how many others agreed with him. And why.

In former times, when monarchies were the rule, allegiance and being a "subject" was prescribed in terms of reference to the king, i.e. to a specific person. In today's world we understand the matter of allegiance itself, and its foundational source, a bit differently: the primary political allegiance is to the state-nation-society. And, because of that allegiance in the first place, we then have allegiance to the government OF that state-nation-society. And if the government is headed by a king, then we have allegiance to that king, in whom the government rests primarily.

For better or worse, England herself set the stage for this change with such acts as initiating the beginnings of a constitutional monarchy (the Magna Carta), inviting James of Scotland to be king...with conditions. And later getting rid of the Stuarts, and eventually inviting in William of Orange...with conditions. And the Hanoverians. In viewing themselves (the free English subjects) as even capable of dictating terms to kings, they had come to see that although there is a legitimate sense in which when the king acts, England acts, that sense is also not the entire truth, and in the nation as a whole resides a superiority to the monarch capable of doing things like prescribing the law of succession. Hence it is possible - though it had been hotly debated in earlier times - that a king could be a traitor to his own country, a thing quite impossible if there is no such thing as any national sovereignty but his own.

What is natural - using the word without legal tinge - is for men to be beholden to and loyal to their nation, their people. This always includes ties of blood, but is crafted of many more things than blood alone. To borrow a passage from one of Al's quotes, where the speaker objects to:

people of a different race, of different religion, of different manners, of different traditions, of different tastes and sympathies ... it is utterly impossible that these people can meet together and enjoy their several rights and privileges which they suppose to be natural in the same society...

A "nationality" grows by a slow process so broadly and so inchoately that it can hardly be pointed at directly. But it cannot be wholly denied, when once it exists, without deceit, for it is made up of so many particulars that to deny it is to deny a million pieces of reality itself. In the happenstance of the growth of the American colonies with their own largely self-constructed society and self-organized governance, the very different traditions, needs, and mores, a new nationality had been formed without anyone quite fully aware of it, until Britain tried to press the matter of allegiance and was found to no longer hold the allegiance needed to press it: In the Declaration, we asserted that we were already a distinct people, not merely that we intended to become one, and this already existing reality of nationhood is the sound basis for why the colonies "ought to be" independent:

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country...

And how could George force them to bear arms against "their country" but by forcing them to fight against the colonies? Which says that "their country" was not Britain, but America.

As long as we are free to speak of nationality in the NATURAL sense rather than as allowed and declared at law, Americans ALREADY WERE a nationality at the time of the Declaration. And the Colonies' assertion of the rights of that nationality were tried in war, and the truth was found adequate to the claim, for the revolutionaries could not have succeeded had most of the population still considered themselves wholly loyal subjects of George. And so persons born within America in the late 1600s to 1740s who saw themselves more as American than as British, and who drove the Revolution home, were the first "natural born Americans" in the purely natural sense of the words: they naturally were loyal to their American confreres, they naturally saw the ties of pioneer and settler culture and traditions as more fundamental than their ties to Britain.

For that reason, it is more probable that the second clause of the Article II passage,

or a Citizen of the United States, at the time of the Adoption of this Constitution,

was not so much to CREATE an additional category of appropriate eligibility, so much as to make certain of what was already true innately but not easily stated in law. Or, as a friend of mine who writes laws and regulations says: a "belt and suspenders" approach - we think it's true BOTH ways, but just to make sure nobody screws it up, we'll state it with the overlap. (If the Founders were THAT worried about those who were not naturally Americans coming to power, why did they let that clause be so broad as to permit ANYONE who had been a citizen as of 1788? Why, that would include the freshest newly-minted citizen made so the day before by operation of law. Why would they permit that within a rule expressly designed to keep out the riff-raff? They couldn't state a more stringent rule? Of course they could! No, they were confident that in their generation their own class of electors would forbid any such nonsense, and they knew that it was unnecessary for the near term to state more limiting criteria for those "citizens at the time of the Adoption..." The clause should be understood as to remove doubt more than to actually create a distinct class that would make no sense given the motivation to limit the pool of eligibility.)

First off, I do not call America a "nation". Nation is Latin, and it would mean "one birth", "natus". It is Latin for a group of Inter-related people. America is not that. It was a mixture of races. America is a Masonic country, the first. (The French Revolution inaugurated the second Masonic republic.) America is purposely built on Masonic ideals and Masonry is about race-mixing. America is a country, not a nation. We should not abuse words for the sake of error filled ideology. That is why the motto on the US seal is "Novus Ordo". The Old Order is by groups by blood; the Novus Ordo is the Masonic ideology. I always refer America as a country. It is not a nation--and never can be. And if we are ever loyal to the Old Order and true conservatives---we must always catalogue ourselves to the Old Order, by blood. Masonry has been condemned by the Church.

Here is the Clause in the Constitution: No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

Citizen AT THE TIME of the Constitution and thereafter, would mean having to be a Natural Born citizen. The pool is to be limited to Natural Born citizens. Any time any American citizen has a child with a foreigner--the process of Natural Born has to be restarted from scratch--it takes three generations.

Don't employ sophistry here. If there is such a thing as "natural born citizen" not in terms of what the LAW implies, but in terms of what NATURE does on her own, then the category of all "natural born citizens" constitute a nation just exactly to that extent.

Lawyers can do legalese all day long, but legalese doesn't countermand Commonsense. If it does--then Law has no business being law.

If you want us to be guided by what is true even without regard to what lawyers say in the law books - i.e. common sense - the either there is no such thing as a natural born American, or there is a nation of natural born Americans. You can't have the people who are natural born Americans be American by operation of nature (rather than by operation of law) unless there is such a thing as the natural American community. That community, precisely to the extent that it can be the harbor of natural born Americans, is at the very least a kind of nation. If there isn't even that much, then please stop pretending to use the term "natural born citizen" for Americans, for it is an inherently empty class.

The pool is to be limited to Natural Born citizens. Any time any American citizen has a child with a foreigner--the process of Natural Born has to be restarted from scratch--it takes three generations.

Not only do you provide no authoritative source for this claim - there is none to be had - you've thus generated an enormous defect in the Constitution's arrangement: If the framers of the Constitution had to put in an exception in the eligibility clause to provide for the first years of presidents because they were not "natural born citizens", then THEY SCREWED UP. They failed. For, in making the exception clause be "citizen at the time the Constitution was adopted", they accounted for the FIRST generation of presidents, but failed to account for the SECOND generation: John Tyler, James Polk, Millard Fillmore, James Buchanan, Abraham Lincoln, and Andrew Johnson all would have failed to be either "natural born citizen" under your definition, or "citizen at the time of the adoption of the Constitution."

I disagree. It's close but the better call is that Cruz isn't qualified as a "natural born citizen" because he wasn't born in the US; his parents weren't just "passing through" Canada or diplomats or otherwise in service to the US people when he was born there, he wasn't taken out of Canada until '74; and, if that's not enough, his father only had asylum in the US, was in Canada when Cruz was born, became a Canadian citizen in '74 and only became a US citizen in 2005. Finally, Ted himself only renounced his Canadian citizenship in 2014. Please correct me if I'm wrong on the facts.

The Founders talked about limiting eligibility to that position to those most attached to this place because of ideas like, "participating immediately in transactions with foreign nations, [such a position in the government] ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education."

The Constitution didn't define "natural born citizen" and didn't delegate a clarification to Congress on the Presidential qualification point, rendering almost your entire discussion as mere persuasive authority on a question that probably requires, or should require, strict scrutiny.

You say "natural born citizen” is completely coextensive with “citizen of the United States at birth” under current federal statutory law, but current federal statutory law is not the issue since it doesn't precisely cover presidential eligibility. Current constitutional law is the issue, and it's open.

The analysis should not be made in a way that favors the applicant. We should not allow the constitution and our own privileges against a presumptively unqualified candidate be attacked in detail. We should not review each separate fact of Cruz's background and decide, no, that is not enough to disqualify him. Rather the reverse. 'Not enough to disqualify' does not equal 'not a problem.' We should look at all the problems and concerns in total. He needs to satisfy US, not vice versa.

Look at Lawrence Tribe's concise arguments on Cruz and McCain.

Meanwhile let me discuss some of your points in detail.

(H) Statutory law supercedes common law when made to clarify or correct defects in common law.

(I) Constitutional law makes only 1 important distinction in citizenship privileges, and that regards those who are “natural born citizens” versus those who are not.

(J) Current statutory law makes only 1 distinction in citizenship types, and that regards those who are “citizens at birth” versus those who are naturalized(tm). And does not require of a child born abroad that both parents or the father be American citizens, only one parent.

...

...If the term “natural born citizen” is not today completely coextensive with “citizen of the United States at birth” under 8 USC 1401, then very likely it currently HAS no definitely determinable meaning, and any attempt to assign a different meaning than “citizen of the United States at birth” would be no better than an ex post facto assertion of will.

"(H) Statutory law supercedes common law when made to clarify or correct defects in common law."

Supersedes implies later in time.

Did the Constitution delegate to Congress the definition of 'natural born citizen' as it applies to questions of someone's qualifications for the Presidency? No.

Did the Constitution delegate the definition of 'natural born citizen' as it applies to all other questions? Yes, maybe, but it's not the issue.

You seem to make much of the fact that the 1790 statute came so soon after the writing and ratification of the Constitution.

To me it seems obvious that the 'soon-after' aspect ('soon afterness'?) was more a matter of fulfilling the delegation on the general citizenship issues than to 'clarify or correct defects' re presidential qualifications issues. (And this just from reading the two. If we're talking about more background historical material it gets worse.)

You also say it's all in a 400 year old English statute. Ok, then take that into account and be a good "originalist."

The 1790 statute may give a good, valid clue as to what was meant or should be understood, but it is not the be all and end all. The be all and end all is or would have been an amendment, or more common law, i.e. a court ruling.

Apparently three near point cases effectively permitted people born in US Territories or areas subject to the US to qualify.

Canada would be a whole 'neither thing.

"(I) Constitutional law makes only 1 important distinction in citizenship privileges, and that regards those who are “natural born citizens” versus those who are not."

Wrong. In terms of our conversation, and the issue of qualifications to be president, this is a useless statement because it completely ignores the gradations of qualifications to serve in the Federal government contained elsewhere in the Constitution. Non Free persons were counted as 3/5's and couldn't even vote. To be a Rep., you had to be 25, 7 years a citizen, and resident of the state from where chosen; Senators, 30 and 9. President 35, 14 a resident and a natural born citizen. Don't you see the parallelism? If there are gradations elsewhere in the compact, then the only reasonable way to read the Constitution is that it asks more of applicants to the presidency. When it comes to being President, it's not just one important distinction in citizenship privileges, it's several, and graded up.

"(J) Current statutory law makes only 1 distinction in citizenship types, and that regards those who are “citizens at birth” versus those who are naturalized(tm). And does not require of a child born abroad that both parents or the father be American citizens, only one parent."

8 USC 1401 doesn't control the Constitution.

Finally, please look again to your own discussion of the "natural order of things" of things.

As far as I can tell, his father was a man rejecting and fleeing his homeland's descent into Godless communism. Was he more running from Cuba than towards America? Did he stay here? Yes, for a while. He took an American bride and got educated and followed the winds of opportunity in industry to another country --this, by the way, while tens of thousands of native sons were fighting and dying overseas in a war against that very godless communism from which the USA took him in and sheltered him.

Do wives follow their husbands? Follow their lead, take on their commitments, loyalties? Political attitudes, sympathies? Is that the natural order of things? So the father is in the lead, the head. Wouldn't the father's leadership and loyalties impact the son's --in the natural order of things?

Think of his family. Think of the years. Of foreign citizenship. Of non-renouncement. Of moves. Of causes for moves. And then weigh all of it in terms of defaulting to stricter, higher standards for the high office of President and tell me it's not you making the ex post facto assertion of will.

I put it to you that to stop Trump you're arguing for an expansion of the category and thus necessarily expanding the dangers to our sovereignty.

I ask you to ask yourself: If Ted Cruz had the political views of Sanders or the view on abortion of Hillary, would you still be so inclined to your argument?

Do wives follow their husbands? Follow their lead, take on their commitments, loyalties? Political attitudes, sympathies? Is that the natural order of things? So the father is in the lead, the head. Wouldn't the father's leadership and loyalties impact the son's --in the natural order of things?

Very true. In the natural order of things, the mother is not equivalent to the father for this purpose.

In my first draft of Part 1, I had a comment that I then deleted because the whole was already too long, but I will make it briefly here. Although I accept the force of the above point, it would be a travesty of "judicial law" if that point were the DECIDING point in the courts, especially at the Supreme Court level, given the now 50 years they have spent throwing original intent and basic common sense out the window with regard to the differences between the sexes. As judicial precedent NOW stands, no court has a place from which to assert "fathers are different from mothers for this purpose in the Constitution". On the other hand, if it weren't up to the courts - if the courts said "it's up to Congress to fulfill its duty in accepting or not accepting the qualifications presented, not us" - then that would be a different matter. Fathers really are different from mothers. At the time the Constitution was written, people really did intend that citizenship be handled differently as passed on by a native father and alien mother, as compared to native mother and alien father.

As far as I can tell, his father was a man rejecting and fleeing his homeland's descent into Godless communism. Was he more running from Cuba than towards America? Did he stay here? Yes, for a while. He took an American bride and got educated and followed the winds of opportunity in industry to another country --this, by the way, while tens of thousands of native sons were fighting and dying overseas in a war against that very godless communism from which the USA took him in and sheltered him.

Right. If it comes down to the position in natural law regarding what Cruz received from his father compared to what we expect a "natural born citizen" to receive from his father, it isn't there. He didn't have it to give. My position was based on Cruz's mother, of course, not father; and the facts that (a) she was entirely an American (both born and bred), and (b) that they did return to the US permanently before he was age 4, in my opinion imply that Cruz junior did receive from his mother what natural born citizens receive from their mothers. I was working off an assumption that we can no longer (for purposes of the Constitution) treat "what a natural born citizen receives from his father" as different from "what a natural born citizen receives from his mother". If we ditch that assumption (if we allow that the decision could be made by Congress rather than by the courts and the Supremes, for example), then we could get the (correct under natural law) result that Cruz was not fully what is and ought to be understood as a natural born citizen. If we cannot treat fathers differently from mothers, because of change in underlying Constitutional law, like the 14th amendment and its progeny, then your point about Cruz senior is inapposite.

I ask you to ask yourself: If Ted Cruz had the political views of Sanders or the view on abortion of Hillary, would you still be so inclined to your argument?

Fair question. Since I was never inclined to make a big issue of the Obama birther "problem", I think I can with decency suggest that I had enough independence of mind to try for a relatively unbiased investigation. And if I failed of that it was more because I found many unworthy arguments against Cruz's eligibility than that I walked into it heavily biased from the start.

To be a Rep., you had to be 25, 7 years a citizen, and resident of the state from where chosen; Senators, 30 and 9. President 35, 14 a resident and a natural born citizen. Don't you see the parallelism? If there are gradations elsewhere in the compact, then the only reasonable way to read the Constitution is that it asks more of applicants to the presidency.

That's a good point, but I don't feel that it's a rock-solid counter-argument. Let me ask you, Christopher: what do YOU make of the clause "or a Citizen of the United States, at the time of the Adoption of this Constitution," as set against "natural born citizen". What would be the point of gradually increasing the years you had to be a citizen for each level, ratchet it up still again for the presidency, and then undermine the very point with "citizen at the time the Adoption of this Constitution"? They're giving away with the left hand what they take with the right. With that clause, a person who made citizen in early 1788 would have been eligible for the presidency for the 1st, or 2nd, or 3rd election (if they had 14 years residency), even though they would not have been eligible for being senator. Why do that? Why not make it "natural born citizen, or a citizen for 35 years at the time of the Adoption of this Constitution" to keep up the increase but still make an exception for the first period?

With regard to your last reply point, yes, I agree it would have been easier to understand and see it as rock solid parallelism if they had just omitted the 'at the time' part.

Nevertheless, there's no inconsistency, no undermining, no giving with the left and taking with the right --provided you respect the temporary --and temporal-- nature of the thing.

A person made a citizen in early 1788 would have either been a child or a man at the time of, essentially, the beginning, the birth, the Revolution.

People present at the start are different than those not. There's a different formation of character from the experience, even if the experience is ancillary or extended. Yes, I'm saying even if you were only a newly made citizen shoe-shine boy in '88 you were different. Because, among other things, you might have had to choose sides. Further, and for practical purposes that I'm sure the drafters would have been aware of, the people would have been able to find out and judge you by what you did during that time. It was a crucible. Did you lay low and stay out of it? Help? Hurt? Think of the clause as sort of allowing for battlefield promotion to the greater Natural Born citizenship.

Or maybe it was just a sop to the rubes, to the ludicrous ambitions of fanciful lower officers, soldiers, partisans and operatives, and only put there as a throwaway, probably never to be exercised clause to help get the Constitution ratified --a lottery ticket clause to support revolutionary spirit. But even then it's still respectable as, at least, another true acknowledgment of human nature.

So it's either an inconsistent but expired and thus irrelevant exception, or an exception based on the real natural importance of having been there at the birth of the nation and hence consistent --albeit expired.

If the apparent but in my view invalid inconsistency still bothers you, read on.

With regard to your points on how judicial precedent stands NOW, I think I sense some despair or at least worry.

And I agree you are right to worry.

Can you imagine the present court, basically split 4-4 liberal and conservative --with the conservative 4 not exactly Scalia originalists, going originalist enough to bar Cruz because it was his mother not his father that was the citizen at the time of birth? I can't.

On the other hand, if the whole essence of the leftist anti-originalist judicial method was just to get to the result they wanted --and maybe it is, then it's similarly hard to imagine this court plus one Obama nominee NOT taking the opportunity to bar an originalist like Cruz from the presidency. There's not much caselaw by the Supreme Court even near the particular point. They'd probably love to hoist Cruz out of office on his own originalist petard.

But to answer your question, again, there is not much precedent. What precedent we have goes back to England and lays a lot of emphasis on the Father. A Cruz case would be very narrow, and only applying to one man and one particular office covered by one particular section of the Constitution, and not all male - female relations --not even most or a significant or part of them. It would be a one-off and curable after, like FDR violating Washington's two-term tradition. It could be done with a straight face by lots of judges.

The kicker, as far as I'm concerned, is that barring Cruz on this basis would strike many in the current climate as fair and reciprocal given how we've extended citizenship to anchor babies, born via citizen grappling-hook births.

Look, all throughout Cruz's life we've given citizenship to babies born of women just passing through. So if passing through was enough to get in, why isn't passing out enough to keep him out for even this one, single, particular, particularly powerful and important position? If flying in to LA at nine months is so significant why isn't Cruz's mom's departure for _years_ significant?

(You know the more I think of it, the more I think that this Cruz guy is one nasty, selfish piece of work. You think Trump is rude over immigration? The gall of Cruz. He's leading us straight into a Constitutional crisis on the meaning of citizenship and nationhood. Maybe he's the real troll in this election?)

Why should we read the Constitution to be such a one-way, give to outsiders but never take away street? Two wrongs don't make a right. But it wouldn't be wrong. Not extending the circle to include Cruz might be over-caution. But what's better from a Constitutional point of view? Too much caution or too little?

(You know the more I think of it, the more I think that this Cruz guy is one nasty, selfish piece of work. You think Trump is rude over immigration? The gall of Cruz. He's leading us straight into a Constitutional crisis on the meaning of citizenship and nationhood. Maybe he's the real troll in this election?)

I don't have time for a full response right now. Just a quick thought: wouldn't it be fun if the Cruz attempt itself was the motivating cause by which the country got serious and closed the idiotic gaps and chasms and loopholes in the current state of "law" all around - including the "just passing through" and born-to-illegals babies?

Why not make it "natural born citizen, or a citizen for 35 years at the time of the Adoption of this Constitution" to keep up the increase but still make an exception for the first period?

On re-reading, I see I didn't quite answer this.

Short answer: Yes, good point. I don't know.

Long Answer: Mind if I move the goalposts? Really, aside from the general gist of my speculation about generations above, the only thing I think of now that still lets my point stay together is to say that while there is a gradation in qualifications, there's also a difference in branches, so there doesn't necessarily have to be absolute, forever perfect alignment.

They knew guys like Washington, Jefferson and Adams would probably win and serve for a generations' time or so. Things had gotten nasty. Loyalists had been identified and tarred and feathered; they were gone. They were theoretically afraid of foreign agents planting or finding a sort of sleeper cell family to serve as usurpers, but weren't too practically afraid of it happening anytime soon --and the natural born or citizen at the adoption precaution would serve. If they had 'or a citizen for 35 years at the adoption,' that might have been more cautious but it might also have been judged an imprudent risk of needless controversy 20-30 years down the road. Imagine discussions in the 1820's about 1753 birth records? (Heck we can't even agree today about Obama's birth certificate. And there's was an age when burning down courthouses wasn't completely unheard of.) It would not have been an impossible rule but maybe it would not have been prudent to require it.

Again, it's a fair point but there's also the sense that, to borrow a computer analogy, the program should only be as complicated as necessary; that the operating code should be clean and elegant. There's a point where one's efforts to foresee potential problems and anticipate them risks creating needless complications and inducing comprehension problems.

Why should we read the Constitution to be such a one-way, give to outsiders but never take away street? Two wrongs don't make a right. But it wouldn't be wrong. Not extending the circle to include Cruz might be over-caution. But what's better from a Constitutional point of view? Too much caution or too little?

Oh, I agree that for this purpose (allowing a person to be President) too cautious is better than not cautious enough. Cutting the theoretically eligible pool from 150 million citizens down to 145 or 140 million is not a big deal. Or, at the time, cutting it from 800K men down to 750K was unimportant (these are just guesses).

In fact, I have not understood why English law, before us, was allowed to broaden the sense of "natural born subject" in the way it did. Sure, it made all the sense in the world to count the child of a diplomat, (a) because the diplomat is about the king's business, not his own, and (b) because (according to the eventual uses of diplomacy) the diplomatic embassy is not "subject to" the laws of France or German but of England, so the child would be born subject to England's laws and England's king even in though outside the country. But why did they later extend that to ALL children born of an Englishman outside the country? Why did they not subject that rule to a "soon return" or "not too long away" or some such limiter?

Think of the clause as sort of allowing for battlefield promotion to the greater Natural Born citizenship.

It's a cool idea, but I don't think it serves adequately. Let me give an analogy. I have known a number of converts into the Catholic Church. They are usually fervent, they are often "on fire" with interest and desire and spirit. But they miss the nuances. They get that we are supposed to be obedient to our bishops...but are not aware of the limits of that authority as that plays out in practice. They get that we are supposed believe all that the Church teaches definitively...but they don't get how that plays out in practice because the Church speaks with a quiet voice, infrequently in a clearly defining voice, but sometimes in a muted sort of definition that partakes of not-definition to some extent. They don't get the nuance. And so while they are often very well read, even very well catechized, they are not supposed to be teachers in the Church until many years after belonging: they need long experience to temper their book knowledge.

Part of the point of having someone be a natural born citizen is not MERELY to be assured of their allegiance (their fire and spirit and zeal), for new converts often have that, but to be sure of their sense of what it means to be American. To be assured that their pulse beats in time with the American pulse - yes, on the big things, but also on the little things that make the big things effective (or impede effectiveness). To make sure they get the feel of it correctly. They have to have the cultural nuances down pat, thoroughly. At least, that's what I think ought to be a big part of the reason for "natural born citizen". And there can be no doubt that "American" had, already by the Revolution, become a kind of a "brand" distinctly from "British", so that a new citizen just would not get the entirety of the brand.

In any case, if they were throwing a bone out to men who had shown their patriotism in the war, then the rule really should have been "citizen at the time of time of the signing of the peace treaty that ended the war", or something like that. Even that much would have created a buffer of 5 years' worth of citizenship, and would have DIRECTLY tied the bone granted to proof of patriotism. Surely if you were a resident HERE for 14 years (before the Continental Congresses), you would have become a citizen by the end of the war if you were committed to America.

They knew guys like Washington, Jefferson and Adams would probably win and serve for a generations' time or so.

I think any plausible reading of the clause has to give some credit to this. They were pretty sure of a very small group of "possibles" for the first 4 to 5 terms at least. As it turns out, Washington, Adams, Jefferson, and Madison - all completely "reliable" possibles at the time - took the first 7 terms, 28 years. And that was (short of losing a war upsetting all calculations) foreseeable in broad strokes. Which means that ANY "initialization" clause they set was going to be a sop or a pretense, in some sense.

Imagine discussions in the 1820's about 1753 birth records?

I suspect not more than two men in three had _records_ that would prove the matter - including either "born here" or "citizen at the time of the Adoption", come 30 years later. Records were difficult and unreliable all round: people relied on personal testimony a lot. "Sure, I knew is pappy when he was born - they lived out in the holler until the Injuns got to be a problem, then they moved next to Widder Smith." Some Christians had parish churches with records or put a lot of their birth records in the family bible, but a lot DIDN'T. Just what kind of records WERE used to become a citizen of a pre-Constitution state? More of those courthouse documents that sometimes burned down?

Can you imagine the present court, basically split 4-4 liberal and conservative --with the conservative 4 not exactly Scalia originalists, going originalist enough to bar Cruz because it was his mother not his father that was the citizen at the time of birth? I can't.

On the other hand, if the whole essence of the leftist anti-originalist judicial method was just to get to the result they wanted --and maybe it is, then it's similarly hard to imagine this court plus one Obama nominee NOT taking the opportunity to bar an originalist like Cruz from the presidency. There's not much caselaw by the Supreme Court even near the particular point. They'd probably love to hoist Cruz out of office on his own originalist petard.

Which raises another constitutional point. If it comes to Congress accepting the credentials of the electors and judging the eligibility of the persons voted for or not (and does not get decided in the courts), and if the electoral college voted for Cruz / Running-mate, but Congress decided Cruz was not eligible, would the DEFAULT effect run to the other person on the ticket? Is that how a presidential ticket plays out? What happens if the presumptive presidential winner dies in late November, before the Electoral College meets to deliver their votes? Or if they become convinced that Congress WILL rule the top guy on the ticket to be ineligible (maybe Congress has already said as much?), are they free to do something other than vote for the top dog of the ticket? Can they vote for the Running-mate as president instead?

Yeah, I don't know on that last hypothetical. I do know that every four years these types of 'what if' discussions arise, probably partly for the civics lesson, but also probably for the drama. It's fun to wonder.

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